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New York - The downturn in the stock market has clearly affected the Torah world as well. One Gvir recently remarked, “I have lost more money in the past two weeks than most people make in their entire lifetime.” With all the tumultuous events happening on Wall Street, many religious Jews are re-examining some of their assumptions about the permissibility of many of their investments.

Many are asking themselves: Is investing in a volatile market tantamount to gambling? A recent article in Time Magazine brought the point home even closer. What do the Talmud, the Shulchan Aruch and the Poskim have to say about it?

There is, of course, the famous Mishna in Sanhedrin (3:3) that tells us that “mesachaik bakubia” dice-players are disqualified from being a witness in a Jewish court. The implications of this Mishna, of course, are that they cannot even be a witness at a typical Ateres Avrohom or Rose Castle wedding.

There is a debate in the Talmud (Sanhedrin 24b) as to the exact reason why dice-playing is no good.

Rami Bar Chama says that it really involves a form of Rabbinically proscribed theft – the person betting doesn’t really think he will lose and the winner is taking money that was never really given up. This is called “Asmachta” in Rabbinic language. Rav Shaishes gives a different reason – the gambler is not involved in Yeshuvo shel Olam – making the world a better place to be. [We will not get into whether Rav Shaishes would similarly disqualify lawyers]. The Gemorah explains that according to Rav Shaishes the disqualification would only apply to someone who does this full time and has no other occupation.

The Shulchan Aruch quantifies the halacha in Choshain Mishpat (370:3), where the commentators are concerned for both opinions cited in the Talmud. The Ramah, however, seems to go with Rav Shaishes’ opinion and only forbids it for someone who does it for a full time occupation. Other opinions are that it may constitute theft.

But, all this has to do with gambling and dice. What about stocks, warrants, options, puts, commodities and futures? Do the Poskim discuss these in terms of Mesachaik BaKubiah?

The Tur in Choshain Mishpat (chapter 209) deals with the concept of Honaah – overpricing and also discusses the purchase of an unknown quantity of commodities and rules that the sale is valid. However, if it is unknown what the commodoty actually is, whether it is straw or wine, the sale is invalid and termed Mesachaik BaKubiah – gambling. The TaZ in discussing the parameters of what constitutes honaah – overpricing seems to state quite clearly that “gambling” can also apply to commodities.

The Nesivus HaMishpat, however, writes that the TaZ’s use of the term Mesachaik BaKubia is actually not applicable to the case discussed and is discussing a different type of business transaction, where both parties – the buyer and seller do not know the commodity involved. The Nesivus states that a scribal error has entered into the text of our TaZ and that the transaction referred to is normal business practice and would not constitute Mesachaik BaKubiah.

Most Achronim (including the Maharshdam) rule that there is no error and even when only one side is unaware of the amount of the commodity it is Mesachaik BaKubiah

According to the other definition of Mesachaik BaKubiah, the transaction should halachically be undone since it constitutes halachic theft. How this opinion comes to play with the fact that the sale is valid according to American law is another issue as well. Halacha also takes into account the Dina DeMalchusa at times, when it comes to validity of transactions.

So where does all this leave us? If one knows what he or she is buying – then it is clearly permitted according to all opinions. If one buys unknown commodities where the seller and buyer are both in the dark and one does so for a full-time living, it seems that most authorities would agree that this would constitute halachic gambling and would be forbidden. [It would therefore be a good idea not to call one of these people as a witness at the next wedding]. If the seller is not in the dark – then some authorities would forbid it, while others would not. If the buyer alone is in the dark and he does not do it for a full time living then everyone would agree that it is permitted.

Ashkenazim have more leeway than Sefardim because the Ramah seems to go with the lenient ruling of full time occupation rather than Asmachta.

Whatever one decides to do, one should speak it over with a Posaik who is knowledgeable in these issues.

The important thing is that we not let it affect how we observe the upcoming Mitvzah of Vehaieesa Ach Sameach during the holiday and that it not affect our daily obligation of Ivud es Hashem BeSimcha – serving Hashem in a state of joy. A happy Sukkos to all!